Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. FP3476A. Gary T. Friedman, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
On a petition to extend Robert Abramson’s commitment to the Department of Mental Health (DMH) as a sexually violent predator (SVP), a jury found him to be an SVP, after which the court ordered him committed for an indeterminate term to the DMH. (Welf. & Inst. Code, § 6604.)
ISSUES ON APPEAL
On appeal, Abramson raises two issues. First, he argues that, even though during voir dire the court instructed the entire venire on reasonable doubt and even though during the instruction-settling conference the parties stipulated to omit the standard reasonable doubt instruction to the sworn jury, the absence of the latter instruction constituted structural error. Second, he argues that the absence of sua sponte instruction on serious difficulty in controlling behavior constituted prejudicial error. We will affirm the judgment.
DISCUSSION
1. Instruction on Reasonable Doubt
Abramson argues that, even though during voir dire the court instructed the entire venire on reasonable doubt and even though during the instruction-settling conference the parties stipulated to omit the standard reasonable doubt instruction to the sworn jury, the absence of the latter instruction constituted structural error. The Attorney General argues that the doctrine of invited error precludes appellate review and that error, if any, is harmless.
Preliminarily, we address the Attorney General’s invited error argument. The record shows that the court invited a stipulation, in which both Abramson’s attorney and the prosecutor acquiesced, that, inter alia, CALCRIM No. 103 “need not be reread” but would “go in with the packet” if the jury were to request the instructions. The record is silent as to a tactical reason, if any, for the acquiescence of Abramson’s attorney and the prosecutor in the court’s invitation. “The invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction. [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 28.) We reject the Attorney General’s invited error argument.
With reference to Abramson’s structural error argument, we turn to the record and then to the law. At the beginning of voir dire, the court instructed on reasonable doubt by reading to the entire venire CALCRIM No. 103 with changes the court made to address specifically the petition about which the jury was to deliberate:
“The next instruction defines reasonable doubt.
“I will now explain the presumption of innocence and the petitioner’s burden of proof.
“The respondent has denied all of the allegations contained in the petition. The fact that a petition for recommitment has been filed against the respondent is not evidence that the petition is true. You must not be biased against the respondent just because the petition has been filed against him or that he has been brought to trial. The petition and its allegations are presumed to be not true. This presumption requires the petitioner, the People of the State of California, to prove each of the allegations of the petition beyond a reasonable doubt.
“Whenever I tell you the petitioner must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the allegations are true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.
“In deciding whether the petitioner has proved its case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the truth of the allegations beyond a reasonable doubt, the respondent is entitled to an acquittal and you must find the allegations to be not true.” (Italics added.)
Shortly afterward, the court emphasized “the principal hallmark of our system of justice, and that is, and normally in a criminal case, that the defendant is presumed to be innocent of all charges until and unless the People can prove his guilt as to each charge and each material element beyond a reasonable doubt. [¶] The same standard applies in this case. The petition is presumed to be not true until and unless the petitioner, also the People, can prove each and every allegation of the petition beyond a reasonable doubt. That’s the presumption of innocence that in a criminal case follows the defendant throughout the trial. It’s kind of like a cloak. [¶] The same in this case, a Sexually Violent Predator case. It covers and cloaks the respondent, Mr. Abramson, just like a coat, and it follows him throughout the trial; that is, the presumption that the petition is not true. The sole and only burden is on the petitioner, also the prosecution, to prove each and every allegation of the petition beyond a reasonable doubt.” (Italics added.)
Later, during individual questioning of a prospective juror, the court stated, “Remember, the burden of proof is proof beyond a reasonable doubt ….” (Italics added.) Not long afterward, Abramson’s attorney engaged in a long dialogue with a prospective juror in front of the entire venire:
“Q. [Prospective juror], this case requires proof beyond a reasonable doubt, just like those criminal matters that you dealt with in the past.
“A. Yes.
“Q. And the proof beyond a reasonable doubt, the standard is it has to be an abiding conviction that Mr. Abramson is likely to reoffend, a substantial danger of that occurring. [¶] Do you think you could hold the prosecution to that burden of proof
“A. Yes.
“Q. – required?
“A. Yes.
“Q. There are four elements in this case that must be proven, each element beyond a reasonable doubt.
“A. Uh-huh.
“Q. And the judge did read them to you when we first assembled the jury. Each and every element, like I said, must be proven beyond a reasonable doubt to an abiding conviction of the truth of the allegations. [¶] Do you think you could hold the prosecution to that burden of proof of [sic] beyond a reasonable doubt?
“A. Yes.
“Q. To each allegation?
“A. Yes.
“Q. In other words, if three of them were proven to you beyond a reasonable doubt, but a fourth wasn’t, could you find that Mr. Abramson was not likely to reoffend?
“A. So it would be a conviction for each one or one total conviction for each element?
“Q. Each element has to be proven beyond a reasonable doubt. One of the elements is that he had prior convictions
“A. Yes.
“Q. – for child molestation. Another element is that he represents a substantial likelihood to reoffend. [¶] You have to figure out what the word ‘likely’ means to you and determine whether or not, based on the evidence from the clinical psychologists, whether or not it goes that high, to that standard of likely to reoffend. [¶] A third element is that it’s necessary that he be treated and not released because he would be a danger to the health and safety of others. [¶] And then another element – so there’s the three I just told you about, and then there’s a fourth one, that he – I have to get my notes here. [¶] And the fourth one is that Mr. Abramson … [¶] … [¶] … has a diagnosed mental disorder. [¶] So that’s four of them, and each has to be proven beyond a reasonable doubt. [¶] … [¶] … If they only have three out of four or two out of four, it’s just not good enough, because proof has to be beyond a reasonable doubt [as] to each and every element.” (Italics added.)
In later give-and-take with other prospective jurors, Abramson’s attorney reiterated the requirement of proof beyond a reasonable doubt no less than 14 times. In a colloquy with one prospective juror, the prosecutor, likewise before the entire venire, emphasized the requirement of proof beyond a reasonable doubt. Shortly before the end of voir dire, the court posed a hypothetical focusing on the role of proof beyond a reasonable doubt:
“THE COURT: … [¶] Now, let me ask you this question: If we asked you right now to reach a verdict in this case, what would your verdict be?
“THE PROSPECTIVE JUROR: Well, I couldn’t reach a verdict because we have no proof. We haven’t heard anything. But
“THE COURT: Don’t you think your verdict would be not guilty because there’s been no proof beyond a reasonable doubt?
“THE PROSPECTIVE JUROR: Right, there’s no proof.” (Italics added.)
At the instruction-settling conference, counsel stipulated that the court need not reread CALCRIM No. 103:
“THE COURT: Let’s go through sequentially by number the instructions so we’re all on the same page. [¶] We’ve already given 100, 101, 103. Stipulate that they need not be reread; however, if the panel asks for the packet, these would go in with the packet?
“[PROSECUTOR]: Yes, your Honor.
“[ABRAMSON’S ATTORNEY]: Yes, your Honor.”
Consistent with the stipulation, the court informed the jury before deliberations commenced that “a copy of these instructions” will be available “to use in the jury room if you so request” but did not read CALCRIM No. 103 to the jury that time. With changes the court made to address specifically the petition about which the jury was to deliberate (as before with CALCRIM No. 103), the court did read to the jury, inter alia, just before deliberations commenced, CALCRIM No. 224 (“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the petition to be true has been proved, you must be convinced that the petitioner has proved each fact essential to that conclusion beyond a reasonable doubt.”) and CALCRIM No. 355 (“A respondent has an absolute constitutional right not to testify. He may rely on the state of the evidence and argue that the People or petitioner have failed to prove the allegations of the petition beyond a reasonable doubt.”). (Italics added.) Additionally, the court read CALCRIM No. 3454 to the jury:
“The petition alleges that Mr. Robert Abramson is a Sexually Violent Predator. To prove this allegation, the People must prove beyond a reasonable doubt that:
“One, he has been convicted of committing sexually violent offenses against two or more victims;
“Two, he has a diagnosed mental disorder;
“Three, as a result of that diagnosed mental disorder it is likely that he will be a danger to the health and safety of others because he will engage in sexually violent predatory criminal behavior;
“And, fourth, it is necessary to keep him in custody in a secure facility to ensure the health and safety of others.” (Italics added.)
During deliberations, the jury requested and received the “jury instructions.” In the clerk’s transcript, the packet of “instructions given” includes not only CALCRIM No. 103 but also CALCRIM No. 3454.
Abramson relies primarily on the holding in People v. Crawford (1997) 58 Cal.App.4th 815 (Crawford) that failure to instruct on reasonable doubt after presentation of the evidence and before deliberations by the jury is structural error requiring reversal per se and prejudicial error requiring reversal under any standard of review. (Id. at p. 817.) In Crawford, the court instructed the entire venire on reasonable doubt during voir dire, but the packet of instructions available to the jury did not include a reasonable doubt instruction. (Id. at pp. 819-820.) Here, on the other hand, the packet of instructions available to the jury – the packet the jury requested and received during deliberations – included, consistent with the stipulation, CALCRIM No. 103. Abramson concedes that “the clerk’s transcript includes the ‘given’ instructions” but argues nonetheless that “there is no evidence as to precisely what instructions the jury received.” Quite to the contrary, the rule is settled that in the absence of any indication to the contrary we presume, as we must, that a judicial duty is regularly performed. (People v. Viscotti (1992) 2 Cal.4th 1, 49; Evid. Code, § 664.) No indication to the contrary is in the record.
For his opposition to Abramson’s instructional argument, the Attorney General relies primarily on the holding in People v. Mayo (2006) 140 Cal.App.4th 535 (Mayo) that omission of a reasonable doubt instruction is reversible error only if the instructions the jury received, taken as a whole, fail to otherwise convey the concept of reasonable doubt. (Id. at p. 542.) Here, as in Mayo, the entire venire received instruction on reasonable doubt during voir dire. (Id. at p. 541, fn. 5.) Here, as in Mayo, the instructions the court read to the jury after presentation of the evidence and before deliberations by the jury imposed a requirement of proof beyond a reasonable doubt as to each element at issue. (Id. at p. 545.) Here, as in Mayo, the court and counsel repeatedly explained the principles of reasonable doubt and the presumption of innocence during voir dire. (Id. at p. 552.) Observing that the federal constitution neither prohibits courts from defining reasonable doubt nor requires courts to do so as a matter of course, so long as courts inform juries of the constitutionally correct standard of proof, Mayo found no miscarriage of justice and affirmed the judgment. (Id. at pp. 542, 548-552, citing Victor v. Nebraska (1994) 511 U.S. 1, 5.)
On the record here, Mayo, not Crawford, is persuasive. The court’s lapse in inviting the parties to stipulate not to read CALCRIM No. 103 to the jury after presentation of the evidence and before deliberations by the jury, though hardly commendable, did not cause a miscarriage of justice. (Mayo, supra, 140 Cal.App.4th at pp. 550-557, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Since there was no federal constitutional error, we do not reach the issue whether error of that magnitude requires reversal per se or harmless error review. (Mayo, supra, at pp. 539, 541-548, citing Sullivan v. Louisiana (1993) 508 U.S. 275, Chapman v. California (1967) 386 U.S. 18.)
2. Instruction on Serious Difficulty in Controlling Behavior
Abramson argues that the absence of sua sponte instruction on serious difficulty in controlling behavior constituted prejudicial error. The Attorney General argues the court had no duty to so instruct.
With commendable candor, Abramson acknowledges that the California Supreme Court has resolved against him the issue he raises solely to preserve his right to pursue federal court relief. (People v. Williams (2003) 31 Cal.4th 757.) The doctrine of stare decisis obliges us to reject his argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Wiseman, J.